My organization, the Judicial Education Project, in
conjunction with two leading Jewish Orthodox Groups, Agudath
Israel of America and the National Council of Young Israel,
has filed an
amicus curiae brief in a Becket Fund case, Stormans
Inc. v. Mary Selecky, et al., defending
conscience rights for pharmacies and pharmacists.

Stormans challenges the constitutionality of
Washington State's Board of Pharmacy regulations that
require pharmacists and pharmacies to dispense emergency
contraceptives. Unfortunately, this regulatory burden
falls-due to secular regulatory exemptions and the Board's
selective regulatory enforcement-exclusively on
religious objections to emergency contraception, while
passing over similarly situated non-religious objectors. In
fact, the Board has actually never attempted to enforce the
regulations against any non-religious objectors. This
is in direct contravention of the First Amendment, which
forbids the government from favorably treating secular
objections to dispensing drugs, but not religious
objections.

The Board claims to primarily enforce the regulations by
following up with customer-generated complaints-despite
having a much wider range of enforcement options available
to them. As we argue in the brief, this "converts the rule
of law into a tool of special interest groups, leaving
groups free to capture the process and selectively enforce a
law." In Stormans, Planned Parenthood and other
abortion rights groups took advantage of the complaints-only
system and used test-shoppers to generate complaints against
conscientious objectors to emergency contraception.

This case has high stakes for religious liberty. In the
State of Washington, if this lawsuit fails, plaintiffs will
pay a steep price for widely-held, mainstream religious
beliefs. Washington pharmacies will shut down, and
Washington pharmacists will have to leave their job, state,
or profession. I would also fully expect emboldened
pro-abortion activists to take their fight against religious
liberty to other states.

This case is also a part of the broader philosophical
battle that is currently raging over the nature of religious
liberty. The left, led by the Obama administration and
states like Washington, is advancing an increasingly narrow
view of religious freedom-one that solely encompasses
"freedom of worship." Under this view, the Constitution
should only protect a dead faith that is free of works,
leaving the government free to choose which religious tenets
are sufficiently secular enough to deserve First Amendment
protection. This has animated the Holder-led Department of
Justice, which took a litigating position in Hosanna-Taborv. EEOC that could have
subjected religious institutions, such as the Catholic
Church, to liability for refusing to hire female priests.
This underlying theme-that religious freedom ends when you
enter the workplace-is also responsible for the pending $1.3
million daily fine against Hobby Lobby for their HHS mandate
violation, and the bizarre idea that Christian colleges such
as Wheaton and Christian publishers such as Tyndale House,
are insufficiently devout to warrant religious protection.

Despite the high stakes, there is hope-in Illinois, the
Becket Fund has already won a lower court victory, which
struck down a similar state law. I remain hopeful that
religious liberty will eventually prevail, and I wish
the Becket Fund and their talented team of lawyers the best
of luck in this case.

UPDATE: To clarify, the plaintiffs in the Stormans
case won in the district court, with a solid decision that
Ed Whelan has
outlined
in detail, in addition to
his
extensive
discussion
of the facts of the case.